Filed: Jun. 04, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 4, 2009 No. 08-13935 THOMAS K. KAHN _ CLERK D. C. Docket No. 05-00585-CV-UWC BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, Plaintiff-Counter-Defendant-Appellant, versus NEW LIFE ART, INC., DANIEL A. MOORE, Defendants-Counter-Claimants-Appellees, versus ROBERT E. WITT, President, University of Alabama, FINUS P. GASTON, Counter-Defendants-Appellants. _ Appeal from t
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 4, 2009 No. 08-13935 THOMAS K. KAHN _ CLERK D. C. Docket No. 05-00585-CV-UWC BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, Plaintiff-Counter-Defendant-Appellant, versus NEW LIFE ART, INC., DANIEL A. MOORE, Defendants-Counter-Claimants-Appellees, versus ROBERT E. WITT, President, University of Alabama, FINUS P. GASTON, Counter-Defendants-Appellants. _ Appeal from th..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 4, 2009
No. 08-13935
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00585-CV-UWC
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA,
Plaintiff-Counter-Defendant-Appellant,
versus
NEW LIFE ART, INC.,
DANIEL A. MOORE,
Defendants-Counter-Claimants-Appellees,
versus
ROBERT E. WITT,
President, University of Alabama,
FINUS P. GASTON,
Counter-Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 4, 2009)
Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Appellants, the Board of Trustees of the University of Alabama (“the
Board”), Robert E. Witt, and Finus P. Gaston appeal from the district court’s June
10, 2008 order striking the affirmative defenses in their Reply to Counterclaim.
Appellants Witt and Gaston also appeal from the district court’s July 2, 2008 order
striking their summary judgment motion. For the reasons described below, we
affirm the June 10th order striking Appellants’ affirmative defenses, but we vacate
the July 2nd order striking Witt and Gaston’s summary judgment motion and
remand to the district court for consideration of the summary judgment motion.1
1
Witt and Gaston asserted state agent immunity as an affirmative defense in both
the Reply to Counterclaim, struck on June 10, 2008, and in the summary judgment motion,
struck on July 2, 2008. The denial of state agent immunity under Alabama law is immediately
appealable to this Court. Taylor v. Adams, 221 F.3d 1254, 1260 n.9 (11th Cir. 2000); Sheth v.
Webster,
145 F.3d 1231, 1238 (11th Cir. 1998). The dismissal of an immunity defense on
grounds of untimeliness is immediately appealable because it denies the defendant the benefit of
immunity from suit. McElroy v. City of Macon,
68 F.3d 437, 438 n.* (11th Cir. 1995); Hill v.
Dekalb Reg’l Youth Det. Ctr.,
40 F.3d 1176, 1183-84 (11th Cir. 1994), abrogated on other
grounds by Hope v. Pelzer,
536 U.S. 730, 739,
122 S. Ct. 2508, 2515 (2002). The June 10th
order striking the Reply to Counterclaim and the July 2nd order striking the summary judgment
motion constituted a denial of Witt and Gaston’s asserted state agent immunity defense on
procedural grounds. We therefore have jurisdiction over the striking of the state agent immunity
defenses in the June 10th and July 2nd orders. Because the issues on appeal with respect to
whether the district court abused its discretion in the June 10th and July 2nd orders are the same
with regard to all of the defenses struck by those orders, we conclude that all of the defenses
raised in the Reply to Counterclaim and in the summary judgment motion are inextricably
intertwined with the state agent immunity defense for the purposes of this appeal. Therefore, we
have pendent appellate jurisdiction over the entirety of the June 10th and July 2nd orders. Swint
v. Chambers County Comm’n,
514 U.S. 35,
115 S. Ct. 1203 (1995); Summit Med. Assocs., P.C.
v. Pryor,
180 F.3d 1326, 1335 (11th Cir. 1999). Accordingly, Appellees’ motion to dismiss this
appeal for lack of jurisdiction is DENIED.
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I. STANDARD OF REVIEW
District courts “enjoy broad discretion in deciding how best to manage the
cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th
Cir. 1997). “[W]e will reverse the trial court’s decision to follow the pre-trial order
only where the trial court has so clearly abused its discretion that its action could
be deemed arbitrary.” Morro v. City of Birmingham,
117 F.3d 508, 513 (11th Cir.
1997) (internal quotation marks omitted).
II. DISCUSSION
A. June 10th Order Striking the Affirmative Defenses in the Reply to
Counterclaim
The pretrial conference in this case was held on June 9, 2008; the pretrial
order was entered on June 10, 2008. Also on June 10, the Board, Witt, and Gaston
filed their first responsive pleading to Appellees Daniel A. Moore and New Life
Art’s (hereinafter “the Moore defendants”) counterclaim, in which the Appellants
asserted fifty-nine affirmative defenses, including “sovereign, qualified, absolute,
discretionary function immunity, and state agent immunity.” On the same day, the
district court sua sponte struck all of the affirmative defenses as untimely because,
among other reasons, the affirmative defenses “are not included in the Counter
Defendants’ Statement of Position in Pretrial Order submitted jointly by the
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parties.”
The district court has broad discretion with respect to interpretation and
enforcement of the pretrial order. “We are not inclined to disturb the district
court’s interpretation of a stipulation agreed upon by the parties during pretrial
proceedings and approved by the court.” Hodges v. United States, 597 F.2d 1014,
1017 (5th Cir. 1979) (upholding a district court’s interpretation of a pretrial order
as barring a defense that the defendant attempted to assert at trial). The pretrial
order in this case did not reference any of the affirmative defenses asserted by the
Board, Witt, and Gaston in their Reply to Counterclaim, nor did it reference their
intention to file the Reply to Counterclaim and the affirmative defenses. While the
timing and complexity of the procedural history in this case makes this a fairly
close issue, we cannot conclude that the district court abused its discretion in
interpreting the pretrial order as barring the Reply to Counterclaim and
consequently striking the affirmative defenses.
B. July 2nd Order Striking the Motion for Summary Judgment
On June 11, 2008, the day after the district court entered the pretrial order,
Witt and Gaston filed a motion for summary judgment in which they asserted a
state agent immunity defense as well as several other affirmative defenses. The
district court ordered a show cause hearing to determine whether it should impose
4
sanctions on Witt and Gaston for filing their summary judgment motion in
contravention of the pretrial order. The district court determined after the show
cause hearing that no sanctions against Witt and Gaston would be imposed, but the
district court struck Witt and Gaston’s motion for summary judgment as untimely
on July 2, 2008.
The district court’s July 2nd order striking the summary judgment motion
stated only that the motion was struck for being untimely. The court’s order for a
show cause hearing and the transcript of that hearing reveal that the district court
struck the motion as untimely because the district court interpreted the pretrial
order as not providing for Witt and Gaston to file a motion for summary judgment.
The pretrial order, however, clearly referenced the summary judgment motion filed
by Witt and Gaston on June 11, 2008 in the section headed “Counter-Defendants’
Position.” This section stated: “Counter-Defendants Witt and Gaston assert that
they are entitled to summary judgment based on the reasons set forth in their
motion for summary judgment and supporting memorandum of law.” The district
court assumed that this reference in the pretrial order to a motion for summary
judgment was a reference to a motion previously filed by the Board. The motion
for summary judgment by the Board, however, did not address the counterclaim
against Witt and Gaston nor did it assert any defenses on their behalf. Thus, it was
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clear that the reference in the pretrial order was not to that previous motion for
summary judgment by the Board.
Given the plain language of the pretrial order, and the fact that the Board’s
earlier motion for summary judgment did not address the claims against Witt and
Gaston, the district court’s interpretation of the pretrial order as not providing for
Witt and Gaston’s June 11, 2008 summary judgment motion was mistaken.
Furthermore, the Moore defendants had ample notice of Witt and Gaston’s intent to
file a summary judgment motion and to assert the state agent immunity defense.
The Moore defendants should have known that Witt and Gaston would file a
motion for summary judgment asserting the state agent immunity defense and other
defenses for the following reasons: 1) the statements at the October 2005 hearing
and in the district court’s November 2005 opinion that Witt and Gaston should file
a brief on state agent immunity; 2) Witt and Gaston’s assertion in their June 6,
2008 Motion to Strike the Amended Counterclaim that they were entitled to state
agent immunity; 3) Witt and Gaston’s direct statement in their brief supporting
their Motion to Strike the Amended Counterclaim that if the district court struck
the amended counterclaim, then they would file a motion for summary judgment;
and 4) the fact that the pretrial order stated in the Counter-Defendants’ Position
that Witt and Gaston sought summary judgment based on their motion for summary
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judgment. When these reasons are combined with the obvious fact that the
reference in the pretrial order to a motion for summary judgment did not refer to
the previously filed motion by the Board, it should have been apparent to the
Moore defendants that Witt and Gaston were contemplating filing the motion for
summary judgment that they filed on June 11, 2008. Also because of this ample
notice, the Moore defendants suffered no prejudice from any delay in the filing of
Witt and Gaston’s motion for summary judgment.
The district court’s discretion to manage the cases before it “is not
unfettered.” Chudasama, 123 F.3d at 1367. Thus, despite the broad discretion
given to district courts in interpreting and enforcing their pretrial orders, we
conclude that the order striking Witt and Gaston’s summary judgment motion is an
abuse of discretion. Because the district court was simply mistaken in its
interpretation of the pretrial order, because it should have been apparent to the
Moore defendants that Witt and Gaston would file the motion for summary
judgment, and because the Moore defendants suffered no prejudice, we hold that
the district court abused its discretion in striking Witt and Gaston’s motion for
summary judgment. Therefore, we vacate the July 2, 2008 order, and remand for
consideration of the summary judgment motion.
Accordingly, the judgment of the district court in the June 10, 2008 order
7
(striking Appellants’ Reply to Counterclaim) is AFFIRMED, but the judgment of
the district court in the July 2, 2008 order (striking Witt and Gaston’s summary
judgment motion) is VACATED.
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